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Summer dress down for staff brings discrimination danger for employers

As the recent Met Office heatwave warning reminds us, we have had something approaching a summer in recent weeks and, as the temperature rises, employees understandably want to dress down at work. Most employers are happy to accommodate this but will still want to maintain a degree of control over the dress code.

Policies and procedures on dress codes should be checked but generally employers can ensure that employees dress appropriately for the particular workplace. But what is deemed to be an appropriate level of dressing down can vary and there can commonly be a perception that male employees, who may still be required to wear a suit, are afforded less leeway than females in the summer months, which raises the possibility of sex discrimination.

To prove sex discrimination, however, it is not enough that a dress code treats men and women differently. Crucially, for the code to be discriminatory, the treatment of one sex must be less favourable than the other.
The issue is not new to employment tribunals and as early as 1977, just two years after the Sex Discrimination Act was introduced, this was considered by the Employment Appeal Tribunal (EAT) in the case of Schmidt vs Austicks Book Shops. Schmidt was dismissed for refusing to comply with her employer's requirement that she wear a skirt, and not trousers, while serving the public and she claimed that this was discriminatory.
The EAT noted that although Schmidt was required to wear skirts, the men were required to wear a shirt and tie. Accordingly, the EAT found that the employer's dress code did not treat either gender less favourably as both were required to dress smartly and so the claim failed.
More recently in Thompson vs Department of Work and Pensions 2003, Thompson argued that requiring men to wear a collar and tie while female employees were required only to ‘dress appropriately' constituted sex discrimination. The EAT held that a requirement for men to wear a collar and tie to work did not necessarily amount to sex discrimination and reinforced the decision made in the Schmidt case but it remains clear that an employer must ensure that its dress code is not more lenient towards one sex than the other.

We have also recently had the widely reported case of Lemes vs Spring and Green: in this case a female employee, Ms Lemes, was informed that the female uniform would be changing for summer from a loose-fitting black shirt and trouser/skirt to a sleeveless red dress of mid-thigh length. Lemes, who had been brought up as a Muslim, informed her employer that the dress made her feel like a prostitute and was told that she must wear the dress to continue working. The tribunal noted that the dress was clearly gender-specific and that a summer uniform not been introduced for male employees. Consequently the tribunal held that by requiring her to wear the dress the employer's actions had violated Lemes's dignity and created a humiliating working environment. Lemes was therefore successful in the sexual harassment aspect of her claim even though the tribunal did not accept that Lemes was left with no choice but to resign.  

All employers must therefore recognise that while it is reasonable to introduce a summer dress code to ensure your employees are comfortable in the heat, it is essential that any such code is applied even-handedly between men and women.

Compiled by partner Kerstie Skeaping, associate Philip Hodges and solicitor Suzanne Grady in the employment department at law firm Halliwells